Morgan v Miles
[2007] FamCA 1230
•17 October 2007
FAMILY COURT OF AUSTRALIA
| MORGAN & MILES | [2007] FamCA 1230 |
| FAMILY LAW - APPEAL - APPLICATIONS – CHILDREN - RELOCATION - Interim parenting orders - Where mother moved approximately 144 km from town in which parties formerly lived - Whether Federal Magistrate erred in exercise of discretion requiring mother to relocate children pending final hearing. Consideration of principles applicable to determination of interim parenting application where one party seeks to relocate children's residence after introduction of Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) - Whether different considerations apply when matter being determined on interim rather than final basis - Whether different considerations apply if relocation is “local” - Whether different considerations apply if relocation does not substantially affect time child applies with other parent - Effect of order for equal shared parental responsibility – Child’s best interest remain paramount but not sole consideration - Application of principles enunciated in Goode and Goode (2006) FLC 93-286. Whether Federal Magistrate failed to apply the relevant provisions of Part VII - Whether Federal Magistrate erred in exercise of discretion in requiring mother to return children - No error by Federal Magistrate - Appeal dismissed. APPLICATIONS TO ADDUCE FURTHER EVIDENCE - Whether appropriate to adduce further evidence - Evidence available at time of hearing before Federal Magistrate - Whether evidence contentious - Whether proposed evidence relevant to variation or final hearing - Not appropriate to admit further evidence - Applications dismissed. COSTS - No departure from s 117(1) sought or warranted. |
| Family Law Act 1975 (Cth), s 60B, s 60CA, s 60CC, s 61B, s 61C, s 61D, s 61DA, s 61DB, s 65DAA, s 65DAC, s 65E, s 93A(2), s 94AAA(3) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), Family Law Reform Act 1995(Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| C and S [1998] FamCA 66 Easteal, P, Behrens, J and Young, L, ‘Relocation Decisions in Canberra and Perth: A Blurry Snapshot’ (2000) 14 Australian Journal of Family Law, 234 Family Law Council (Australia), Relocation: a report to the Attorney-General prepared by the Family Law Council, Family Law Council , Barton, 2006 |
| APPELLANT: | Ms Morgan |
| RESPONDENT: | Mr Miles |
| FILE NUMBER: | CAC | 482 | of | 2007 |
| APPEAL NUMBER: | EA | 65 | of | 2007 |
| DATE DELIVERED: | 17 October 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 3 September 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 10 April 2007 |
| LOWER COURT MNC: | FMCAfam 316 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms O’Connor |
| SOLICITOR FOR THE APPELLANT: | Legal Aid Commission of NSW |
| COUNSEL FOR THE RESPONDENT: | Mr Stewart |
| SOLICITOR FOR THE RESPONDENT: | Elizabeth Fleming & Associates |
Orders
That the appeal be dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Morgan v Miles
| THE APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 65 of 2007
File Number: CAC 482 of 2007
| Ms Morgan |
Appellant
And
| Mr Miles |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the mother against an interim parenting order made under the Family Law Act 1975 (Cth) (“the Act”) by Federal Magistrate Brewster on 10 April 2007. The appeal is resisted by the father. This appeal was heard by me as a single Judge by direction of the Acting Chief Justice dated 22 May 2007 pursuant to s 94AAA(3) of the Act.
The Federal Magistrate’s orders made 10 April 2007 provide that the parties’ two children, T, born in February 2001 and, M, born in October 2003 live with the mother and that they spend time with the father each alternate weekend, and for one half of school holiday periods. Order 2, the order the subject of the appeal, is in the following terms:
THAT the mother is to relocate the residence of the children to [a small town on the south coast of New South Wales] area as soon as practicable. This Order however is conditional upon the father securing for her accommodation comparable in facilities and rent to the accommodation she previously had in [the town].
It is not disputed that, at the time of the commencement of the proceedings by the father in which he sought final orders for the children to live with the parties on a “week about” shared parenting regime (which proceedings were filed in the Local Court, Batemans Bay and transferred to the Federal Magistrates Court, Canberra), the mother lived in a small town on the south coast of New South Wales (“the small town”). However, shortly prior to the proceedings commencing before his Honour the mother had moved to another town (“the second town”), a distance of approximately 144 km from the small town.
The gravamen of the mother’s appeal is that the learned Federal Magistrate was in error in the exercise of his discretion in requiring T and M, pending the final hearing which is fixed for 9 November 2007, to live with the mother in the small town as the time the father spends with the children in the small town under his Honour’s orders is asserted to be almost identical to that proposed by the mother if she lives in the second town.
To aid understanding of these reasons, I set out Order 3 of the Federal Magistrate’s orders. The order provides for the time the father is to spend with the children in the small town pending final hearing. It is in the following terms:
THAT pending the mother’s relocation the father spend time with the children each alternate weekend from 4.00pm on Friday until 4.00pm on Sunday and half of each school holiday period with the changeover at [a midpoint town]. When the mother relocates the same arrangement will apply except the father is to pick up [T] from [the local] Public School and [M] from [a day care centre].
Subsequent to the filing of this appeal, on 4 June 2007, following the filing of a stay application by the mother, Federal Magistrate Brewster made orders by consent staying Order 2 and 3 of his orders and further providing:
…
2.That the children spend time with the father as follows:
a) From 4.30pm Friday until 4.30pm Sunday on two weekends out of three commencing on Friday, 8 June 2007.
b) For one half of each school holiday period.
3.That for the purposes of Order 2 the mother will deliver the children to the father in [the small town] and the father will return the children to [the second town].
4.That the mother will ensure the children do not stay overnight with her brother.
Application to adduce further evidence
On 13 August 2007 the mother filed an Application in a Case in which she sought to rely on an affidavit sworn by her on 9 August 2007 by way of further evidence in the appeal. The mother’s application to adduce further evidence was opposed by the father’s counsel. At the hearing of the appeal, the father sought that in the event I permitted the mother to rely on further evidence, that he too should be able to adduce further evidence. I indicated that I would give my reasons for accepting or rejecting those applications with these reasons.
Background
The father was born in July 1979. At the date of the hearing he was engaged in employment as a school cleaner.
The mother was born in January 1979. At the date of the hearing the mother was engaged in home duties and in receipt of social security payments. The mother has a child from a previous relationship K aged 11 years at the date of the hearing. K does not see his biological father.
The parties cohabited from approximately 1997 until August 2004. They never married.
Throughout the period of the parties’ cohabitation they lived in the small town in rented accommodation.
Following the parties’ separation the father had regular contact (as it was then referred to in the legislation prior to the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amending Act”) with the children.
On 13 October 2006 the parties entered into a written agreement about arrangements for their children (“the parenting plan”). I will return to discuss the terms of the parenting plan later in these reasons. They also entered into an agreement about the payment of child support and other expenses by the father.
The father’s family live in the small town. The mother’s family live in the second town.
On 22 February 2007 the father filed an application in the Local Court, Batemans Bay in which he sought, inter alia, the following orders:
Final Orders Sought
1.That the parties have equal shared parental responsibility for [T] (born [in] February 2001) and [M] (born [in] October 2003) (“the children”).
2.That the said children live with each of the mother and the father for equal times as agreed between the parties and failing agreement, week about from the conclusion of school each Friday and one half of school holidays.
…
Interim or Procedural Orders Sought
…
2.The mother is restrained from changing the residence of the children from the [the small town] area pending further order of the Court.
3.That the children spend time with the father every week from Thursday 5pm until 4pm on Sunday.
…
The mother sought by way of interim and final orders, an order that the parties have equal shared parental responsibility for the children. She also sought by way of interim and final orders an order that the children live with her and:
3.That the children will spend time with the father as follows:
(a)Each alternate weekend from 4pm on Friday until 4pm on Sunday
(b)For half of each school holiday period to include Christmas Day and Easter Day in alternating years
(c)At other times by agreement between the parties
(d)The parties will meet at McDonalds at [a mid-point town] for the purpose of changeover at the beginning and end of all time with the father, unless otherwise agreed.
The father’s application was first listed before the Local Court at Batemans Bay on 23 February 2007. The application was further listed before the Local Court on 12 March 2007 when an order was made that the proceedings be transferred to the Federal Magistrates Court, Canberra Registry.
On 25 February 2007 the mother moved to her parents’ home at in the second town.
The Federal Magistrate’s reasons
His Honour commenced his reasons by referring to his discussion with the parties’ legal representatives, and noted that he had initially approached the matter on the basis that he would “refuse this application and permit the relocation to [the second town]”. His Honour then referred to the fact he had “overlooked” that “informal contact had been occurring between [T] and the father at school and some contact with both children via their grandmother in [the small town]”, and said “[t]hat does make a difference”.
The learned Federal Magistrate then noted that, given the ages of the children, alternate weekend contact was not ideal, but it was what the parents had agreed to (in the parenting plan) and that “it would still be feasible with the move”. His Honour thereafter recorded there were “good reasons why the mother should be permitted to move” and said “it would not surprise me if those reasons were to prevail at a final hearing”.
His Honour then referred to the fact the amount of contact the father was having with the children, not pursuant to the parenting plan, but “as a matter of practical reality” altered, or had the “potential to alter, the relationship between the father and the children”. His Honour concluded in these circumstances, it would be inappropriate to approve a relocation on an interim basis. His Honour said “[i]t would be much better if the Court had the opportunity to consider all matters and make a considered decision following a final hearing”.
His Honour then referred to provisions of the Act and said “…[o]bviously the best interests of the children are the paramount consideration here and the backdrop to that is s.60B, and there are some relevant parts of s.60B which speak of children having the benefit of both their parents having a meaningful involvement to the maximum extent consistent with their best interests” (paragraph 2).
His Honour referred to the fact the father had, in addition to the contact pursuant to the parenting plan, some “involvement” which he noted had been “…quite brief, for example seeing the older child at school…”
Thereafter, his Honour referred to s 60CC, and concluded he was unable to make findings in relation to the matters referred to in that section on an interim basis.
His Honour then discussed the father’s application for final orders for equal shared care and said:
…I looked on that with a considerable degree of cynicism. He concedes in paragraph 17 of his first affidavit that the mother was the primary parent during the relationship. For three years after separation this has continued to be the case and that was embodied in an agreement reached by the parties in October of 2006 which provided the father to see the children every second weekend and half school holidays. (paragraph 3)
His Honour further commented:
In any event I think that, whilst the reasons for permitting a relocation to the second town are cogent and may well ultimately prevail, they do alter the time that the father in fact sees the children and a decision as to whether that relocation should occur is best left to a final hearing.… (paragraph 3)
His Honour cited the judgment of the Full Court in C and S [1998] FamCA 66 and quoted from the judgment of Warnick J, with whom Ellis and Lindenmeyer JJ agreed, who said:
In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a relocation, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what it or they had been immediately beforehand.
His Honour then referred to his earlier expressed view that he had first considered “…the relocation did not significantly alter the relationship of the children with the father…” but said matters pointed out by the father’s counsel “…to which I have adverted…” had caused him to change his mind and that he proposed “to order the mother to relocate.”
His Honour then discussed the necessary conditions he intended to impose as a prerequisite to the mother’s return to the small town, namely that the father obtain accommodation for her at a suitable standard, both as to the premises and amount of rent. Finally his Honour recorded that he intended to list the matter for final hearing within a relatively short period.
Should the mother’s further evidence be admitted?
Before commencing my discussion of this topic, it is important to record that the parties agreed that I should be informed of, and have access to, the orders made by consent as a result of the mother’s stay application. I have already set out the relevant orders. It is strongly submitted on behalf of the father that his position in resisting the appeal should not be prejudiced by reason of his consent to the children remaining in the second town with the mother pending the determination of this appeal so as, in effect, to “penalise” him for consenting to such arrangement. It was submitted if he was penalised, it would have the effect of many unnecessary stay applications being brought and litigated.
I think it is appropriate at this stage of my reasons to record that on hearing the appeal I raised with the parties the utility of this appeal having regard to the consent orders made on the stay application, which by the time of the hearing had been in place for four months, and more significantly having regard to the impending final hearing listed for 9 November 2007. However, both parties’ counsel indicated they wished to have the appeal heard and determined.
In respect of her application to adduce further evidence, the mother sought to rely on her affidavit affirmed 9 August 2007. The father’s position was that in the event that I admitted the mother’s affidavit by way of further evidence, that he sought to rely on his affidavit affirmed on 27 August 2007 and filed in Court on 3 September 2007.
The mother deposed that after the making of the consent orders on the stay application, the father said he was unable to have the children two weekends out of three, and after June 2007 that he had spent time with the children each alternate weekend and for one half of the July school holiday period. The mother also deposed to the nature of the contact between the father and T whilst the father was employed as a cleaner at the local Public School.
The mother also deposed to a conversation between herself and the father in late 2006 or early 2007 when she asserted the father told her he would not be working at the primary school any more but would be cleaning at the high school instead. She said “[f]rom around that time we no longer saw [the father] at the school when I went to collect [K] and [T]. To the best of my knowledge the father had ceased working at [T]’s school before he commenced these proceedings, and before the children and I moved to [the second town]”.
At the hearing before me, the mother also sought to rely on her affidavit affirmed 3 May 2007 in support of her application for a stay. The mother deposed that she had made arrangements to move on the weekend of 24 and 25 February 2007, and that prior to that day, she had packed up her house and made arrangements to put her belongings into storage until she found a new house to live in the second town. The mother said she moved with the three children to the second town on 25 February 2007 and stayed in her parents’ home until she located a suitable home. She also deposed to the children’s enrolment in schools and a day care centre.
The mother deposed to attending at the Local Court, Batemans Bay on 12 March 2007, by which time she said she had filed a response and affidavit and was represented in Court.
The mother asserted “[t]here was nothing said in Court to make me think it was not okay for me to remain residing in [the second town] with the children or that it was likely that the court would order me to return to [the small town].” She said she located a rental house in the second town and signed a 12 month lease on 27 March 2007.
In his affidavit, the father referred to the consent orders dated 19 June 2007 [semble 4 June 2007] and said he had been unable to comply with the orders because the costs associated with travel became too great. He said “I explained this to the mother and we agreed to reduce the contact to once every fortnight”. The father referred to the contact he had with T whilst he worked at the local Public School.
In paragraph 6 of his affidavit, the father said “I have now ceased working exclusively at [the local] Public School, I still work there on some days, however there is no set routine”.
The father also sought to rely on his affidavit sworn 4 June 2007 in opposition to the mother’s stay application. He deposed to locating several properties in the area as appropriate accommodation for occupation by the mother.
The High Court in CJD v VAJ (1998) 197 CLR 172 at 53; (1998) FLC 92-828 discussed matters of principle to be applied when an intermediate appellate court, with a power of rehearing on an appeal, considers, in the exercise of its discretion, whether further evidence should be admitted. In their joint judgment McHugh, Gummow, and Callinan JJ considered s 93A(2) (the provision which enables the Full Court to admit further evidence) and said at paragraph 109:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
Their Honours thereafter referred to a number of relevant matters to be considered in the exercise of the discretion to admit further evidence including whether the evidence is controversial, questions of the admissibility of the evidence, and the weight to be given to the failure to adduce the evidence, if available, before the primary judge. They also considered relevant in parenting cases the ability to seek to bring subsequent actions to vary a parenting order.
The mother offers no explanation as to why the evidence about her move from her parents’ home into rented accommodation and the terms and conditions of the lease of twelve months duration was not led before his Honour. It was clearly relevant and available evidence.
It appears to me that the evidence which the mother seeks now to adduce about the cessation or partial cessation of the father’s employment at the local Public School, and the dispute about that evidence, which is highlighted by the father’s further evidence sought to be adduced, is controversial. Further there is no explanation by the mother as to why that evidence was not adduced before the Federal Magistrate.
It also appears to me that the evidence sought to be adduced about the level of time the father is presently spending with the children is a matter which may be very relevant at the final hearing, but does not, of itself, demonstrate the order the subject of the appeal is erroneous if it is sought to be adduced on that basis. It may be relevant evidence in an application to vary the existing interim order, or on the re-exercise of the discretion if the appeal is allowed, and it is deemed appropriate for me to re-exercise the discretion.
From the mother’s submissions it was apparent that she sought to challenge the Federal Magistrate’s orders on the basis that his Honour was mislead about the father seeing T regularly after school, such time with T being in addition to that spent under the terms of the parenting plan.
In the opening paragraphs of his reasons his Honour referred to the informal contact that “had been” occurring between T and the father at school, and significantly that the father had been spending time with the children “via their grandmother”. There was no dispute that after the parenting plan was signed the children spent every Thursday evening at the paternal grandmother’s home in which the father lives.
In summary, I am satisfied that the evidence (or significant parts of it) sought to be adduced:
· Could have been adduced at the interim hearing
· Raises matters of controversy
· May be relevant to be adduced at the final hearing or on a variation application
· Did not demonstrate, if it had been available to the Federal Magistrate, that it would have resulted in different orders being made
Thus I am satisfied that the mother’s application to adduce further evidence (and the father’s similar application) should be rejected.
The grounds of appeal
The mother relies on the following grounds of appeal:
1.That His Honour erred in failing to apply the principles set out in D & SV (2003) 30 Fam LR 91 requiring that consideration be given to alternate arrangements for children to spend time with a non-resident parent in preference to limiting the freedom of movement of a parent over a short distance.
2.That His Honour erred in finding in the absence of evidence that the children’s relationship with the father would be damaged if the mother was permitted to remain residing in [the second town] with the children.
3.That His Honour erred in placing undue weight on the father’s evidence of casual contact with the children occurring in the context of the father’s employment as a cleaner at the school.
4.That His Honour erred in placing insufficient weight on the parenting plan signed by the parties in October 2006 and on the fact that the time with the father set out in that Parenting Plan could be maintained if the children remained in [the second town].
5.That His Honour erred in failing to place sufficient weight on the practical difficulty and expense involved if the mother is required to move back to [the small town] with the children on an interim basis.
6.That His Honour erred in failing to consider or to place sufficient weight on the welfare of the subject children’s elder sibling, [K].
7.That His Honour erred in refusing the mother’s request for an adjournment of the matter until after the parties’ participation in a mediation conference that had been arranged to take place on 23 April 2007.
Ground 1 - asserted error by Magistrate failing to apply principles in D v SV
In her written submissions in support of this ground, the mother’s counsel referred to the decision of the Full Court D and SV (2003) FLC 93 137; (2003) 30 Fam LR 91 and P and P and Children’s Representative (2005) FLC 93-239; (2006) 34 Fam LR 340 and submitted that the principles enunciated in these cases remained relevant notwithstanding the passing of the amending Act. Counsel submitted:
These cases were decided before the amendments to the Act relating to the presumptions of equal shared care, but it is submitted that it would apply today, in that where there was not an equal shared care arrangements prior to any proposed move, then, if it was thought to be in the children’s best interests, the question then is one of what time the children should spend with the other parent once such a move had taken place. (mother’s submissions page 5)
I find a number of difficulties with that submission which I will, for convenience, briefly discuss now before turning to the broader issues raised by this appeal.
First, there is no presumption of equal shared care to be found in the Act. The presumption, which does not apply in situations of child abuse and family violence, and may be rebutted if not appropriate in the circumstances of the case, is in respect of equal shared parental responsibility not equal shared care (see s 61DA). (my emphasis)
As explained in Goode and Goode (2006) FLC 93-286 and in Newlands and Newlands [2007] FamCA 168, if the presumption applies and an order is made for equal shared parental responsibility, this triggers the requirement for a judicial officer determining an interim or final parenting application to consider whether spending equal time with both parents is in the best interests of a child, and whether the child spending equal time with both parents is reasonably practical, and to consider making an order to that effect (s 65DAA(1)). If the Court does not made an order for a child to spend equal time with each parent, to consider whether the child spending substantial or significant time with either of his or her parents is in the child’s best interests, and whether spending substantial or significant time is reasonably practicable, and to consider making an order for the child to spend significant or substantial time with the child, or make other orders.
Secondly, on one reading of the submission, it assumes a “right” to relocate. There is nothing in the legislation which provides that a parent who has existing order which provides that the child spends fifty per cent or more of his or her time with that parent has a unilateral right to move the child, (on the basis that this is in the child’s best interests). Whilst such a move may, after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation. It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.
Thirdly, the Federal Magistrate was not dealing with a proposed move – the mother had actually moved after the institution of the proceedings in which the father sought an injunction restraining the removal of the children from the small town.
This appeal, whilst appearing narrow in focus, raises important issues for consideration. Those issues require some consideration of:
·whether the Act now requires different principles to be applied when determining a parenting application where one party wishes to relocate;
·whether the same or different considerations apply when a parenting application which involves a relocation is being heard on an interim basis rather than on a final basis;
·whether the same or different considerations apply to an intrastate, interstate or international relocation, to “local” relocation;
·what constitutes a “local” relocation;
·what do provisions of the Act or principles established by authority require if a parent has effected (as in this case) a unilateral move;
·whether different considerations apply if the move does not substantially affect the time a child spends with the “left behind” parent.
The relevant principles applied to “relocation” cases prior to the amending Act
The principles to be applied at a final hearing in “relocation” applications after the amendments made to the Act by the Family Law Reform Act 1995 (“the Reform Act”) were considered by the High Court and the Full Court in a number of cases including B and B: Family Law Reform Act 1995 (1997) FLC 92-755; AMS v AIF (1999) 199 CLR 160; Paskandy and Paskandy (1999) FLC 92-878; A and A: Relocation Approach (2000) FLC 93-035; U v U (2002) 211 CLR 238; (2002) 191 ALR 289 and Bolitho and Cohen (2005) FLC 93-224.
The case law, after the Reform Act and before the introduction of the Amending Act, demonstrated the development of a number of principles applied in determining parenting applications where one parent wished to relocate a child’s place of residence. Those principles included the following:
·The best interests of the child are the paramount but not sole consideration.
·The applicant is not required to demonstrate “compelling reasons” for the proposed relocation.
·A court must evaluate and weigh the competing proposals of the parties against the relevant provisions of the Act, and may subject to procedural fairness considerations, formulate its own proposals in the best interest of the child.
·The evaluation of the competing proposals is to be undertaken as part of the overall determination of the issue of where the child or children should live – the relocation issue is not a separate issue
·That the objects and principles in s 60B (as it then was) informed or guided a court in applying the criteria relevant to “best interests” (then determined having regard to s 68F (2) factors).
·A court will take into account a parent’s right of freedom of movement, but that right must defer if the welfare of a child would be adversely affected.
The issue of whether the move of a parent involving a relatively short distance required consideration of these “relocation” principles was discussed in D and SV with the Full Court concluding that generally where a move involved a short distance, and where “residence”, as it was then referred to in the Act, was “not seriously in issue”, that the focus should be on “alternate contact or shared residence arrangements”.
Cases before the introduction of the amending Act where trial Judges were required to determine interim parenting arrangements where one party sought to relocate, or had unilaterally relocated shortly before the hearing, focused on maintaining stability for a child pending a final hearing on the basis of the well known principles in Cowling and Cowling (1998) FLC 92-801; (1998) 22 Fam LR 776 (see, for example, C v S (1998) FamCA 66; D and H [1998] FamCA 1487; T and T and Child Representative [2000] FamCA 1812; G and G [2003] FamCA 478; B and L [2003] FamCA 1512 and T and J [2006] FamCA 145).
Amendments introduced by the amending Act
The legislative framework introduced by the amending Act is set out and extensively discussed in Goode, particularly at paragraphs 5 to 13.
It is important to note for the purposes of this appeal that the amending Act did not effect any change the paramountcy principle to be applied in making a parenting order, and s 65E is replicated in s 60CA. Nor did the amending Act repeal s 61C, which confers on parents of a child parental responsibility for that child, although three notations were added to the section. The effect and operation of s 61C after the amending Act is discussed in Goode (paragraphs 29-36), and the overall effect is summarised in paragraph 37 as follows:
Thus, where no contrary order has been made, parents may exercise this responsibility independently or jointly. This would be so whether the parties were married, living together, never lived together or separated as long as there was no contrary order in force.
The provisions contained in s 60B(1) which sets out the objects of Part VII and the principles underlying that Part of the Act were amended. Section 60B now provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
…
(my emphasis)
Of significance is the introduction of s 61DA which provides a presumption, that if a court makes a parenting order, it is in a child’s best interest for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of child abuse or family violence, and may be rebutted if not in the best interests of the child.
The effect of an order which provides for shared parental responsibility is to require parents to jointly make a decision about a major long term issue for the child (s 65DAC). Major long term issues include matters such as the child’s education, religious and cultural upbringing, health, name, and “changes to the child’s living arrangements that make it significantly more difficult for a child to the spend time with a parent” (s 4(1)) (my emphasis).
Section 61DA(3) provides that the presumption in s 61DA(1) applies when a court is making an interim order, unless it would not be appropriate in the circumstances for the presumption to be applied. In Goode at paragraph 78 the Full Court said that the discretion afforded by s 61DA(3) is “not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult”. Section 61DB provides that a judicial officer making a final parenting order must disregard any allocation of parental responsibility made under an interim order.
As I have already noted, the Full Court in Goode discussed at paragraph 65 the effect of a court making an order for shared parental responsibility. Such an order “triggers” a requirement that the court consider whether a child spending equal time with each parent is in the child’s best interests, and whether such arrangement is reasonably practical, or if no order is made for equal time, to consider the child spending substantial and significant time with each parent if it is in the child’s best interests and reasonably practical (s 65DAA(1) and (2)). In a case involving relocation, which raises issues of whether a child spending equal, or substantial or significant time, is “reasonable practicable” s 65AA(5) is likely be of significance. Section 65AA(5) is in the following terms:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity-the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
A court in determining what is in a child’s best interests must consider the matters set out in s 60CC (the primary considerations (s 60CC(2)) and the additional considerations(s 60CC(3))).
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(my emphasis)
The additional considerations in s 60CC(3) are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Whether the Act now requires different principles to be applied in determining a parenting application when one party wishes to relocate
There can be no dispute that in determining a case where one party, which research indicates is invariably the mother, (see Easteal, P, Behrens, J and Young, L, ‘Relocation Decisions in Canberra and Perth: A Blurry Snapshot’ (2000) 14 Australian Journal of Family Law, 234) wishes to relocate, a court is making a parenting order generally about who the child will live with or with whom the child shall spend time. The Act does not treat “relocation” cases as a special category of parenting orders. In that respect the amending Act has effected no change to the law.
It is also undisputed that in determining a parenting case where one party wishes to relocate the child’s best interests remain the paramount, but not sole, consideration.
The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent.
If no order for equal shared parent responsibility has been made and s 61C governs the situation, the parties can exercise parental responsibility either jointly or severally.
The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
Section 60I requires parents, if no exclusionary factors such as abuse, family violence or urgency apply, whether there is an order under s 61C, or s 61B is operative, to make a genuine effort to resolve the dispute with a family dispute resolution practitioner.
In considering whether the child should live with the parent who proposes to relocate a court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
·Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
What is the effect of the legislation in dealing with an interim application?
It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.
I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.
The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:
71.The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
73.That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to
s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.
As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.
Do different considerations apply if the proposed relocation is intrastate, interstate, or international or “local”?
This appeal does not raise issues relevant to an international or interstate move and I have not had the benefit of argument on those issues. It is not necessary or appropriate to consider the issues germane to such applications on this appeal against an interim parenting order. It would be a rare case that a parenting order providing for an international relocation would be made following an interim hearing.
The focus in this appeal has been on what may be described as a “local” move of approximately 144 km and whether this constitutes “a relocation”.
The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.
Appellate principles
This is an appeal against a discretionary judgment. The limits on appellate inference with such judgments are well known. In Gronowv Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Applying the principles and the legislation to the facts in this case
The mother’s first complaint is directed to his Honour’s asserted failure to approve the relocation on the basis that she is the primary carer of T and M and as such she should have been permitted to remain in the second town following her unilateral decision to move to that town and his Honour’s focus should have been on suitable arrangements for the father to spend time with the children.
It is relevant to note that no cross-appeal was filed by the father, notwithstanding his Honour did not make orders as sought by the father in his interim application for significantly more time with the children than provided in the parenting plan. However the following exchange by the Federal Magistrate with the legal representative of the mother is illuminating:
MS WEAVER: Your Honour, sorry, just in relation to that, are you saying that the orders in relation to the time that the children will spend with the father will still be what is in that agreement? So that they will still spend alternate weekends with the father?
FEDERAL MAGISTRATE: Yes, although the reality is the older child sees the father more frequently, and the reality is that I imagine that the arrangements in relation to the grandmother will continue. If they didn’t, she can file her own application. I am just going on that assumption. It wouldn’t do your client any good to be dog-in-a- manger-ish about this, there is a final hearing, by the way. (transcript 10/04/07 page 11)
His Honour in his brief reasons, which he noted were “unstructured”, did refer to the fact the father sought by way of final orders an order for the child to spend equal time with each parent. His Honour did not however address the issue of the order sought by the mother, on both an interim and final basis, for equal shared parental responsibility. That omission is not the subject of a ground of appeal (or any cross appeal). Although it would have been helpful if his Honour had said so, I infer therefore that his Honour invoked s 61DA (3).
His Honour did focus on the matters to be taken into account under s 60CC. After referring to the time the time the father had been spending with the children and the nature of his “involvement” including seeing T at school in the small town, concluded (as the issue was subject of controversy) that he was “not able to make findings on these matters on an interim basis”. His Honour’s recording that he was unable to make findings in related to controversial factual matters is consistent with authority (see Goode).
His Honour thereafter turned to the non controversial matters, namely the father’s concession that the mother had been the children’s primary caregiver during the parties’ relationship, a situation which continued for three years after the parties’ separation, and which arrangement was incorporated into the parenting plan signed by the parties. The relevant provisions of that plan which is dated 19 October 2006 are:
This Agreement is for 2(two) years 19-10-2006 until 19-10-2008.
[The father] is to have the Children every 2nd (second) weekend picking the children up from School ([the local] Public School) and Day-care on Friday afternoon and returning them on Sunday to [the mother’s] residence at
1.00pm4.00 comprimised [sic] with 3.00pm[The father and mother] are to share the School Holidays with the Children. Having the children half of the school holidays with alternating halves for Christmas and Easter Holidays.
On Christmas Day, Easter Day and Birthdays or other Special Occasions on these days they are to be shared by both parents. With alternate morning and afternoon with a 2.00pm be [sic] the exchange time for these days. The children are to be collected and drop [sic] back to [the mother’s] residence.
Phone Contact is to be available at all times to the children and each parent can contact the children to speak to them each night between 5pm-7pm.
…
If there is to be a Change of Address by either Parent it has to be given 21 (twenty one) days prior to [sic] move and a discussion is to take place with children’s welfare in mind.
…
It is clear from the transcript that his Honour found that the terms of the parenting plan did not, as the mother’s legal representative asserted, contemplate a relocation from the small town:
MS WEAVER: Your Honour, my client made those plans in the light of the parenting plan that had been signed by the parties on the two months previously.
FEDERAL MAGISTRATE: Well yes, I see, but the parenting plan is a bit vague, isn’t it? If I were to interpret it, I would interpret it as if there [sic] to be a change of address. Not change of location. It uses the word “address.” What it does say is have the children every second weekend:
- picking up the children from school ([the local] Public School.)
Now, I would have interpreted that as meaning if she was going to move from one part of [the small town] to another, or perhaps to [a nearby town] or something like that. It does use the word “address”, change of address. You wouldn’t normally talk about a relocation as a change of address. And it is quite inconsistent with the fourth, or the third substantive paragraph. That is, picking up from [the local] Public School and [day care] for the younger child. So I don’t know that you can say that it is consistent with the agreement.
MS WEAVER: I am explaining to you what my client’s understanding of the agreement was. As you would know, it is not perfectly clear - - -
FEDERAL MAGISTRATE: The problem is the third paragraph, though, isn’t it? Which is very specific. It is true that one can have alternate weekend contact with your client moving in [sic] [the second town], but not picking up from school and day-care… (Transcript, 10/04/07 page 8)
It is also very clear from the transcript although his Honour did not make orders for the older child to spend time with the father for brief periods after school, or for both children to stay overnight in the paternal grandmother’s house (in which the father lives) he envisaged the informal arrangements which had pertained until the mother’s move to the second town would continue.
His Honour properly, in the exercise of his discretion, considered whether the arrangement occasioned by the mother’s unilateral move to the second town had changed, or would change the relationship between the father and the children, and concluded, referring to the matters set out at the commencement of the reasons, namely the cessation of the “informal contact which had been occurring between T and the father at school and some contact with both children via their grandmother in [the small town]”, would have that effect.
Whilst, as acknowledged by his Honour that his reasons were “unstructured” and brief, I do not accept that his Honour fell into appealable error by failing to treat the move, as a move by a primary caregiver, which only required consideration of “alternate” contact arrangements to maintain the children’s relationship with the father pending a final hearing. Rather his Honour, albeit briefly, properly:
·set out the general terms of the parties’ competing proposals for final orders;
·identified contested factual issues which he could not determine on an interim basis including how much time or how often the father saw T after school; and
·had regard to matters relevant to the children’s best interests under s 60CC including:
-their primary care by the mother pre and post separation;
-the fact that the children regularly each Thursday stayed with the paternal grandmother, and saw the father that evening, and that the elder child had seen the father after school for some period;
-the ages of the children and the level of time spent with the father and paternal family which occurred prior to the mother’s unilateral move;
-the provisions of the parenting agreement including the collection of the children from school and pre-school;
-the effect of the unilateral move by the mother after the father’s application was filed;
·Gave most weight to matters relevant to the primary considerations namely the maintenance of a meaningful relationship between the children and the father, and concluded on an interim basis, that the mother should return the children to the small town, subject to provision of suitable housing.
I am satisfied that the appellant has not established an appealable error by the learned Federal Magistrate in respect of ground 1.
Ground 2 - that His Honour erred in finding in the absence of evidence that the children’s relationship with the father would be damaged if the mother was permitted to remain residing in the second town with the children
In support of this ground the mother’s counsel said:
It is clear that the children would spend less time with their father if they were to live in [the second town], but it does not follow that their relationship with their father would necessarily be damaged.
It is clear that the mother was a parent who was committed to ensuring that the children maintained a close and loving relationship with their father, and there was nothing in the evidence to suggest that she would not remain so committed. (mother’s submissions page 5)
The Federal Magistrate was dealing with this matter on an interim basis. He did not, as will usually be the case at a final hearing, have the benefit of a Family Report or other objective evidence to assess the nature and quality of the children’s relationship with either party. In this context he had to make a determination based on such non controversial evidence as was available. That evidence included the evidence of the paternal grandmother, in whose residence the father lived, having regular weekly overnight time spent by the children at her home.
In these circumstances his Honour had to deal with such evidence as was before him. His Honour took into account the young ages of the children, and the potential adverse impact of a reduction in the time the children spent with the father pursuant to the parenting plan and the informal contact. I discern no appealable error by his Honour in his consideration the potential impact of the mother’s relocation on the children, and its effect or potential effect to maintain a meaningful relation with the father, given the interim nature of the hearing.
Ground 3 - that His Honour erred in placing undue weight on the father’s evidence of casual contact with the children occurring in the context of the father’s employment as a cleaner at the school
The complaint raised in this ground has already been subject of discussion by me. I am satisfied that his Honour did not determine the application adverse to the mother by reason of the cessation of after school contact. It was the cessation of that time, but more significantly the time spent by the children at the paternal grandmother’s house, which his Honour took into account in the exercise of his discretion. I do not find ground 3 established.
Ground 4 - that His Honour erred in placing insufficient weight on the parenting plan signed by the parties in October 2006 and on the fact that the time with the father set out in that Parenting Plan could be maintained if the children remained in the second town
I have already set out relevant provisions of the parenting plan and his Honour’s dialogue with the mother’s legal representative about that plan earlier in these reasons.
It appears to me the changes effected by the mother’s move which are inconsistent with the parenting plan, are the following:
·The move would reduce the father’s time with the children each alternate Friday – the time commencing from 4pm rather than after school or pre-school and involve the children in one and a half to two hours travel at the beginning and conclusion of each period.
·The father would not be involved in attending the school and pre-school each alternate Friday.
·The move limited the father’s ability to be involved in and attend school events.
·The move jeopardised each party spending one half of special occasions with the children.
His Honour was very cognisant of these matters, which will no doubt be fully explored on a final hearing, but the potential detrimental effect of which could not be determined at an interim hearing. I am satisfied the parenting plan, and the effect of the move cannot be considered in isolation from the evidence of the other time the father spent with the children prior to the move.
Ground 5 - asserted failure to have sufficient regard for the practical difficulties involved in the mother moving back to the second town
It is submitted that his Honour failed to consider the practical difficulty and expense of the mother moving back to the small town on an interim basis pending the final hearing.
The Federal Magistrate imposed as pre-condition upon his return order that the father secure for the mother accommodation comparable in facilities and for a similar rental to the mother’s previous accommodation in the small town.
From the commencement of the proceedings by the father in the Local Court at Batemans Bay, but before the hearing before his Honour, the mother had moved to the second town in opposition to the father’s pending application. She had moved in with her parents and said she was looking for rental accommodation. She had enrolled K and T at the local public school. At the time of the hearing the mother had been in the second town for a little over one and a half months.
Whilst his Honour’s orders would cause the children to suffer some disruption by reason of a return to their old schools, and a move into new accommodation at least until November 2007 when the matter is fixed for final hearing, I am satisfied that his Honour was entitled in the exercise of his discretion, to take into account the circumstances in which the mother chose to move. The previous residence of the children was in the small town. It was where they had lived and attended school and pre-school for the majority of their lives. I am further satisfied his Honour did not commit appealable error in ordering the children’s return after a relatively short period in the second town, and subject to conditions.
Ground 6 - asserted failure to place sufficient weight on welfare of K (the mother’s eldest child)
Little argument was addressed to me in respect of this ground. The mother in her affidavit material set out some background about the father’s relationship with K, and difficulties in that relationship from around September 2006. She also deposed to K being suspended from school in the small town and his wish to move to the second town.
Examination of the transcript reveals the mother’s legal representative did allude to K’s difficulties, but they were not the prime focus of the mother’s case. His Honour was clearly conscious of the matters the mother asserted as relevant to support her move, and noted in paragraph 1 of his reasons that “there are good reasons why the mother should be permitted to move” and that those reasons may “prevail at a final hearing”.
I am satisfied that his Honour did not fail to take into account K’s needs. His Honour found the matter was “finely balanced”, but factors favouring the mother returning and remaining in the small town outweighed factors favouring her remaining in the second town until the final hearing.
Ground 7 – the asserted failure to refuse the mother’s application for an adjournment
When the matter was called on before his Honour he confirmed with the mother’s legal representative that she wished to make an application to adjourn the matter on the basis that the parties had agreed to participate in a mediation conference which was to occur two weeks hence.
At the time the matter was listed before his Honour the father’s application had already been adjourned on two occasions in the Local Court, and on the last occasion the matter was transferred to the Federal Magistrates Court, Canberra Registry. Having discussed the matters in issue, his Honour noted that the basis the adjournment was sought was not because the mother’s legal representative was unable to argue the matters in issue. He also had regard to the fact that the father sought, on the third occasion his application was before the Court, a determination of interim issues.
I discern no appealable error by his Honour in refusing to adjourn the matter in circumstances where the matter had been commenced by the father in the Local Court prior to the mother’s unilateral move, and adjourned on two previous occasions in the Local Court. The mother’s legal representative did not raise any issue of prejudice to the mother in the interim hearing proceeding, and the parties were not precluded from attending any mediation subsequent to his Honour’s orders, or to varying those orders by a new parenting plan.
Conclusions
This is an appeal against a discretionary judgment. No appealable error having been demonstrated the appeal must be dismissed. I take this opportunity to record that matter is fixed for a final hearing on 9 November 2007, and that the mother’s counsel indicated that she does not raise any issue, notwithstanding this appeal, about Federal Magistrate Brewster hearing the competing applications for final orders. Any application to vary the existing orders could be made to his Honour prior to that date if necessary.
Costs
At the conclusion of the hearing of this appeal I sought submissions from both parties in respect of costs. The mother sought in the event I found an error of law by his Honour that she should receive a certificate pursuant to the Federal Proceedings(Costs)Act1981 (Cth). Both parties are legally aided. In the event the appeal was dismissed, neither party sought any order for costs.
The appeal having been dismissed it follows there will be no order for costs.
I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 17 October 2007
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